People v Richardson

2008 NY Slip Op 00669 [47 AD3d 905]

January 29, 2008

Appellate Division, Second Department

As corrected through Wednesday, March 12, 2008

The People of the State of New York,Respondent, v Rodney Richardson, Jr., Appellant.

—[*1]Beverly Van Ness, New York, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch of counsel; SeanBaker on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Nassau County (Donnino, J.),rendered March 28, 2005, which, after a hearing to redetermine the defendant's sex offender risklevel pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

In 1992 the defendant lured two young neighbors, ages 8 and 11, to his basement by offeringto play video games with them. After establishing a friendship with them, he offered the boysmoney in exchange for sexual favors. The defendant pleaded guilty to sexual abuse in the firstdegree and was sentenced to six months' imprisonment and five years' probation. He laterviolated his probation by selling crack cocaine to an undercover police officer and received anindeterminate term of 21/3 to 7 years' imprisonment. Prior to his release fromprison in 1998, a hearing was held pursuant to the Sex Offender Registration Act (CorrectionLaw art 6-C, hereinafter SORA), to determine his risk of reoffending, and the defendant wasadjudicated a level three sex offender. In 2004 a SORA redetermination hearing was heldpursuant to the stipulation of settlement reached in Doe v Pataki (3 F Supp 2d 456[1998]), and the Supreme Court determined that the defendant was a level three sex offenderupon an aggregate risk factor score of 135 points.

Utilization of the risk assessment instrument will generally "result in the proper classificationin most cases so that departures will be the exception—not the rule" (Sex Offender [*2]Registration Act: Risk Assessment Guidelines and Commentary at4 [1997 ed]). Departure from the presumptive risk level is not appropriate unless "there exists anaggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately takeninto account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [1997 ed]).

Here, the Supreme Court properly determined that there was clear and convincing evidenceto support the presumptive level three sex offender designation (see People v McLaughlin, 40 AD3d832 [2007]) and providently exercised its discretion in denying his request for a downwarddeparture as the defendant failed to present clear and convincing evidence of specialcircumstances warranting such a departure (see People v Adams, 44 AD3d 1020 [2007], lv denied 9NY3d 818 [2008]).

The defendant's remaining contentions are unpreserved for appellate review (see People v Dexter, 21 AD3d 403[2005]; People v Angelo, 3 AD3d482 [2004]). Spolzino, J.P., Skelos, Florio and Dickerson, JJ., concur.